Stewart v R

• Jurisdiction: Cayman Islands
• Judge: (Douglas, Ag. J.)
• Judgment Date: 23 June 2000
• Court: Grand Court (Cayman Islands)
• Date: 23 June 2000

Grand Court

(Douglas, Ag. J.)

STEWART

and

R.

Ms. Samuels-Brown and P. Polack for the appellant;

Ms. C. Richards, Crown Counsel, for the Crown.

Cases cited:

(1) Att.-Gen. (Hong Kong) v. Wong Muk Ping, [1987] A.C. 501; [1987] 2 All E.R. 288; [1987] LRC (Crim) 315, applied.

(2) Bissessar v. JordanUNK(1965), 8 W.I.R. 315, dicta of Wooding, C.J. applied.

(3) D.P.P. v. Kilbourne, [1973] A.C. 729; [1973] 1 All E.R. 440; (1973), 57 Cr. App. R. 381, dicta of Lord Hailsham of Marylebone, L.C. applied.

(4) Davies v. D.P.P., [1954] A.C. 378; [1954] 1 All E.R. 507, applied.

(5) Dilbert v. R., 1988–89 CILR N–9, considered.

(6) Gonzalez v. R., 1986–87 CILR 143.

(7) Helner v. R., 1984–85 CILR 171, distinguished.

(8) Nicoletta (G.A.) v. R., 1990–91 CILR 152, distinguished.

(9) Powery (Denton) v. R., 1994–95 CILR 373, considered.

(10) R. v. DacresUNK(1980), 33 W.I.R. 241.

(11) R. v. Maguire, [1992] Q.B. 936; [1992] 2 All E.R. 433; [1991] LRC (Crim) 227, distinguished.

(12) R. v. Maqsud Ali, [1966] 1 Q.B. 688; [1965] 2 All E.R. 464, followed.

(13) R. v. Simpson, [1993] 3 LRC 631, dicta of Downer J.A. applied.

(14) R. v. Stevenson, [1971] 1 All E.R. 678; [1971] 1 W.L.R. 1; (1970), 55 Cr. App. R. 171, considered.

(15) R. v. Williams, [1995] 1 Cr. App. R. 74; [1994] T.L.R. 44, distinguished.

Legislation construed:

Criminal Procedure Code (1995 Revision) (Law 13 of 1975, revised 1995), s.65(1): The relevant terms of this sub-section are set out at page 232, lines 41–43.

s.67: The relevant terms of this section are set out at page 232, lines 44–45.

Misuse of Drugs Law (1999 Revision) (Law 13 of 1973, revised 1999), s.7(3): The relevant terms of this sub-section are set out at page 221, lines 2–4.

Summary Jurisdiction Law (1995 Revision) (Law 10 of 1975, revised 1995), s.25: The relevant terms of this section are set out at page 224, lines 31–35.

Criminal Law-drugs-identification of drugs-no evidence needed of transport of drugs from police to laboratory for analysis if chain of custody otherwise unbroken and no evidence of tampering

Evidence-corroboration-accomplices-may convict on uncorroborated evidence of accomplice if credible and court demonstrates awareness of need for caution-no particular form of words required if judge or magistrate sitting alone-credibility to be assessed from whole of evidence, not in isolation

Evidence-interpreters-Jamaican dialect-interpreter unnecessary under Summary Jurisdiction Law, s.25 if key participants in trial Jamaicans

Evidence-witnesses-credibility-no duty on prison authorities to disclose to defence that prosecution witness recently disciplined for drug abuse in prison

Criminal Procedure-pleas-time for plea-under Criminal Procedure Code (1995 Revision), ss. 65(1) and 67, trial of accused before plea entered is nullity-not guilty plea after close of evidence ineffective to validate trial

The appellant was charged in the Magistrate”s Court with being concerned in the importation of cocaine.

The appellant was arrested on information received from other persons involved in the importation of cocaine from Jamaica. A woman, H, was

apprehended on arrival from Kingston, confessed to having swallowed a number of sealed pellets of cocaine, and was admitted to hospital, where a total of 56 pellets were retrieved. Two different customs officers oversaw the retrieval. At the police station, the pellets were heat-sealed, labelled and weighed by a customs officer in the presence of H, and sent to Miami for analysis.

H named an accomplice, B, as the overseer of the operation, who in turn named the appellant as the ultimate recipient and agreed to assist the police in apprehending him. B made telephone calls to the appellant, which were taped by the police and used in evidence at his trial, together with a transcript of the tapes. B pleaded guilty to the charge against him and gave evidence for the Crown. During the course of the trial, B, who was in prison, was disciplined by the prison authorities for use of ganja, but no mention of this was made to the defence.

The appellant was charged initially with other offences relating to the importation and possession of drugs, and the charge of being concerned with the importation of cocaine was added later. At the trial, following a submission of no case to answer, he was called upon only to answer one of the original charges, a charge of importation. Later, when it was discovered that he had not pleaded to the other charges, these charges were put to him and he pleaded not guilty. He was convicted of being concerned in the importation of cocaine.

On appeal the appellant submitted, inter alia, that his conviction was unsafe since (a) there was insufficient evidence linking the drugs exhibited to the court with those retrieved from H and those described in the certificate of analysis; (b) the Magistrate had failed to give proper consideration to the credibility of the accomplice, B, whose evidence contained many contradictions and inconsistencies, and had failed properly to direct herself as to the need for corroboration; (c) the tape-recorded telephone conversations and transcripts should not have been admitted without the presence of an interpreter or translation, under s.25 of the Summary Jurisdiction Law, as the Jamaican dialect of the persons on the tape was difficult to understand; (d) in any event, it had not been established before the tapes were admitted that they were original recordings, and the Magistrate should not have relied on the transcript for the purpose of her rulings but should have referred directly to the tapes; (e) the Magistrate had reversed the burden of proof on several issues in her consideration of the evidence; (f) the fact that one of the main prosecution witnesses, B, had been disciplined by the prison authorities for drug abuse was relevant to his character and should have been notified to the court; and (g) the trial was a nullity, the appellant not having been called upon to plead to the charge of which he was convicted until after relevant evidence had been heard.

Held, quashing the conviction and ordering a retrial:

(1) The cocaine and certificate of analysis had been properly admitted into evidence, since there was no significant break in the chain of custody

leading from H to the exhibits. Even though the customs officer who sent the drugs for analysis had witnessed the collection of only some of them from H in hospital, both H herself and the appellant had accepted the retrieval of 56 pellets as a fact. The customs officer identified the package which she had sent, and the certificate clearly related to the same package, the only difference being the labelling of the gross weight of the substance retrieved, on the package and the net weight of the pure drug, on the certificate. In the absence of any evidence that the pellets had been tampered with, the lacuna in the evidence from the time of sealing to when the analysis occurred did not affect admissibility (page 219, line 8 – page 220, line 38).

(2) The evidence of the accomplice, B, had properly been admitted. The Magistrate had been at liberty to convict the appellant even without corroboration if satisfied of B”s credibility, provided that she demonstrated in her judgment her awareness of the danger of doing so. In the absence of a jury, she was not required to do so in a particular form of words. Whilst no amount of corroborative evidence would suffice to cure the defect if B”s evidence had not been credible, his credibility was not to be assessed in isolation but in the light of all the evidence in the case. The Magistrate had found him to be a credible witness and considered that the tape recordings corroborated his evidence, as independent evidence tending to confirm the appellant”s guilt in a material way (page 222, line 26 – page 224, line 20; page 229, line 35 – page 231, line 11).

(3) The tape-recorded telephone conversations and the transcripts were also admissible. The appointment of an interpreter under the Summary Jurisdiction Law (1995 Revision), s.25 was at the discretion of the court and had been unnecessary in this case, as the Jamaican dialect was a form of English widely understood by Jamaicans, who made up almost the entire dramatis personae of the trial. Though the court could have rejected the tapes if satisfied that they were not original recordings and so not primary evidence, no such objection had been made at trial and there was no doubt as to their authenticity. The Magistrate”s references to the transcripts rather than to the tapes themselves in her rulings was not irregular, since she had made a detailed comparison of the two and there were no material differences (page 224, line 36 – page 225, line 9; page 225, line 31 – page 227, line 10).

(4) The Magistrate had not reversed the burden of proof in her assessment of the evidence merely by considering the appellant”s version of events before turning to the prosecution case. Having stated that she did not believe his explanation for the tape recordings, she properly found that there was sufficient evidence adduced by the Crown upon which to convict (page 227, lines 14–38).

(5) The failure by the prison authorities to disclose B”s punishment for the use of ganja in prison was not an irregularity in the course of the trial,

since the prison authorities were not to be equated with the prosecution, and the punishment was an administrative function, not a judicial one. They had not been obliged to inform the court of it, and in any event the revelation that B was a user of ganja was of little weight by comparison to his admitted involvement in importing cocaine (page 228, line 40 – page 229, line 24).

(6) None the less, the court would quash the appellant”s conviction, since he had not been asked to plead before the trial to the charge of which he was convicted. By ss. 65(1) and 67 of the Criminal...